May 10, 2013
Massachusetts

Falmouth ZBA rules wind turbines are a nuisance

By: Michael C. Bailey | Published: 05/10/13 | The Enterprise | www.capenews.net

Wind turbine opponents scored at least a moral victory last night, when the Falmouth Zoning Board of Appeals voted to uphold a noise complaint against Wind 1 by abutter Neil P. Andersen of Blacksmith Shop Road.

“Our town bylaw does not exempt the town from causing a nuisance,” Matthew J. McNamara, chairman of the zoning board, said before the 4-1 vote to overturn an earlier denial of Mr. Andersen’s complaint. “We’re told that the burden of proof is on Mr. Andersen…the essence of a private nuisance action is some interference with the use and enjoyment of the property, and based on that, I would say Mr. Andersen has met his burden.”

“It is important, I think, also to remember that Mr. Andersen did not come to the wind turbines,” he added, “the turbines came to Mr. Andersen.”

Mr. McNamara stressed that the decision does not amount to a cease-and-desist order against the turbine and the zoning board does not have any enforcement authority. The matter will now go back to Building Commissioner Eladio R. Gore, who will draft a formal response that includes a course of action to address the issue.

By then, however, Mr. Andersen’s grievance could be a moot point as the town is preparing to vote on whether to approve funding for the removal of both of the turbines from the town’s Wastewater Treatment Facility on Blacksmith Shop Road.

Mr. Andersen, a West Falmouth resident, filed the complaint against Wind 1 last year on the basis that its sound output constituted a nuisance, but Mr. Gore rejected the complaint.

Mr. Gore denied the complaint on the basis that Wind 1 did not present a nuisance by virtue of excessive noise as per Massachusetts Department of Environmental Protection (DEP) regulations.

The DEP’s recommended noise threshold for turbines is 10 decibels (dB) over a location’s ambient sound levels. A DEP sound study conducted at Mr. Andersen’s property found that in seven sound samplings out of eight—four taken during the daytime, four at night—the sound exceeded the 10 dB threshold only during evening samplings, and the turbine’s nighttime operation has since been halted.

The DEP standard was one of the points debated at length by the board, but Mr. McNamara argued that the standard did not apply here in light of the fact the DEP set the standard back in the 1970s, and has since conceded that it is no longer an appropriate standard.

Another major point in the discussion was the town’s noise bylaw, which limits noise to 40 dB. Some DEP sound samplings recorded sound levels as high as 50.5 dB, but also found that the area’s ambient sound itself was often in excess of the 40 dB limit.

However, as Mr. McNamara pointed out, the testimony presented by Mr. Andersen and his neighbors characterized the sound as a nuisance not by its volume, but by its impact on their quality of life.

“The judge of what is obnoxious, what is objectionable, really comes down to our sensibilities, as well as the circumstances,” he said.

Patricia P. Johnson, who cast the sole vote to uphold Mr. Gore’s ruling, said town bylaws are vague on the concept of what constitutes a nuisance in the context of sound, and Mr. Gore therefore ruled appropriately because he based his decision on the DEP guidelines.

Ms. Johnson also regarded the testimony delivered by residents as “sort-of hearsay…it really was opinions, and a lot of times this board only wants to hear things that are substantiated.”

Mr. McNamara concurred that the bylaw was vague on defining a nuisance caused by noise, but noted the board’s role was to interpret and apply the bylaws whenever circumstantial or subjective circumstances applied to a given case.